Employers and the Law: 2013–14 Anthology of Best Articles

Preface

The law touches almost every aspect of the relationship between employers and their employees. Hundreds of articles are written every year about legal developments that impact this relationship. This anthology is a compilation of the best of these articles that were written between March 1, 2013 and February 28, 2014. This time frame was selected because it enabled us to include end-of-year articles that review key changes in the law during 2013 and beginning-of-year articles that cover trends and action items for 2014.

The articles in this collection were written by leading US employment law experts. In selecting these articles the goal was to include articles that are concise, clearly-written, practical and relevant to the responsibilities of business owners, managers, and human resource professionals—and to their legal advisors.

The result is a mixture of two types of articles. Some articles focus on fundamental, recurring legal concerns. These include, for example, articles on employer responsibilities relating to holiday activities, off-duty conduct, record keeping, reductions in force, retaliation, seasonal workers, severance agreements, trade secrets, and workplace violence.

Other articles address issues that have recently received national attention as a result of changes in the business and legal environment. These include articles on employer responsibilities relating to criminal background checks, Bring Your Own Device policies, workplace bullying, electronic communications, leaning in, obesity, social media, telecommuting, and workplace wellness programs.

While authored by leading experts in the field of employment law, these articles are published only for educational and informational purposes to give you a general understanding of the law. They are not intended and should not be construed as legal advice.

The articles are organized into four groupings.

Opening Test. Do you have a sound understanding of the legal responsibilities of employers? Before using the resources presented in this book, we suggest that you first answer the ten questions posed by Anthony J. Romano and Scott M. Gilbert in the opening article entitled New Year’s Resolution—Protecting Your Business: 10 Employment Law Questions to Test Your Knowledge. Congratulations if you can answer eight or more of these questions correctly!

Broad Coverage. With the onset of a new year, several authors wrote review articles that summarize legal developments in 2013 and agendas for 2014. For example, in An Employer’s ‘Top 5’ Action Items for 2014, Frank C. Morris, Jr. reviews key employment law actions for 2014, such as reviewing mandatory arbitration agreements, enhancing accessibility of websites to individuals with disabilities, ensuring that job descriptions have been updated, and reviewing confidentiality and non-compete agreements.

The focus of Harold P. Coxson’s article A Review of Labor and Employment Policy in 2013: What’s Next in 2014 is on Congressional and government agency developments in 2013 and anticipated regulatory actions in 2014 relating to, for example, proposed revisions to the persuader activity reporting requirements and implementation of the Occupational Safety and Health Administration (OSHA) Injury and Illness Prevention Program.

In Your 14 Labor and Employment Resolutions for 2014, Alizah Z. Diamond discusses fourteen key labor and employment issues that will impact employers in 2014. These concerns include, for example, the impact of the Affordable Care Act, minimum wage increases, and the need to update employee handbooks.

Welcome 2014: Five Employment Law Trends You Need to Know by Kristin L. Oliveira covers the impact of Ban the Box laws on your workplace, employee wellness plans, the use of Facebook and other social media websites in making hiring decisions, the need for a BYOD policy, and developments relating to independent contractors.

Global Concerns. In today’s global business world, employers are increasingly concerned with the legal environment outside the United States. In her article 14 Global Workplace Trends for 2014, Ute Krudewagen addresses the fourteen top legal trends that impact multinational employers in 2014. These trends include legal concerns relating to global competition for talent, a stronger need to protect confidential information, new discrimination and gender equality laws, and a global focus on anti-corruption measures.

Two articles by Donald C. Dowling, Jr. address specific employment law concerns that extend outside the United States. In Individual Employment Dismissal Obligations Outside the US, he inventories seven types of dismissal laws that employers might encounter overseas that fall within three categories: (1) dismissal procedures, (2) pre-termination notices and (3) severance and wrongful termination awards.

In Cross-Border Age Discrimination Compliance, Mr. Dowling addresses one of the toughest issues in developing an international equal opportunity compliance initiative—age discrimination. After summarizing the nature of the problem and the challenge in developing a cross-border discrimination policy, he provides a four-step solution for bringing international age discrimination initiatives into compliance.

Specific Topics. Most of the articles in the book cover specific topics relating to the legal responsibilities of employers. As noted earlier, some of these articles address longstanding concerns for employers while other concerns have recently gained prominence.

Background Checks. In And by the Way, Are You a Criminal, Andria Ryan poses three key questions that employers should ask to ensure that hiring and screening practices are not discriminatory. While the article is directed toward the hospitality industry, the advice is also relevant to other types of employers.

Bring Your Own Device. BYOD policies offer employers an opportunity to significantly reduce IT costs and give employees the freedom to choose the type of device they want. However, as discussed by Zachary B. Busey in BYOD—Bring Your Own Device Policies, these policies raise a number of legal concerns and the need for an up-to-date company policy.

Bullying. Workplace bullying achieved national prominence and heavy media coverage as a result of allegations by a Miami Dolphins football player. Linda Bond Edwards and Brent D. Hartman, in their article When the Playground Bully Becomes an Adult Workplace Bully, discuss the types of workplace behaviors that constitute bullying and provide suggestions on how employers should address bullying.

Confidential Information. With an increase in trade secret theft in recent years, employers should understand key concepts. In Guidelines for Protecting Company Trade Secrets, Armand J. Zottola and Robert F. Parr provide practical advice on how to identify and protect trade secret information.

Defense of Marriage Act. Section 3 of DOMA defined marriage for purposes of federal law as the union of a man and a woman. In United States v. Windsor, the US Supreme Court held that this section is unconstitutional. Robert A. Fisher and Lyndsey M. Kruzer, in Supreme Court Finds DOMA to Be Unconstitutional—Impact on Employers Explained, discuss a number of significant changes as result of this decision. These changes relate to employee benefits, family emergencies, immigration, etc.

Electronic Communications. The widespread use of Twitter has resulted in a new word describing a legal claim for a libelous post—twibel. In She Tweeted What?! Tony G. Puckett discusses measures that employers should take to prevent such claims, including training programs that utilize specific examples and a social media policy that describes in detail what is and is not permitted in social media posts.

Employee Leaves. While most employers are familiar with the basics of the laws relating to employee leaves, some types of leave create unique challenges. Carolyn D. Walker, in FMLA Leave or ADA Accommodation (Or Both)? Overview of Beyond the Basics, describes six of these thorny situations and provides clear guidance on how to handle them.

Family Responsibilities Discrimination. In Lean In: Women, Work, and the Will to Lead, author Sheryl Sandberg, Chief Operating Officer at Facebook, notes that she teaches managers to encourage employees to discuss family matters. Do such discussions create discrimination litigation risks? In Does Leaning In Make Legal Sense for Employers? Definitely, John P. Furfaro, Risa M. Salins and Anne E. Villanueva conclude that greater risks might lie in not engaging employees on these issues.

Flu Planning. Recurring legal questions that arise during flu season, such as workplace policies regarding presenteeism, the legality of flu vaccine requirements, and employer rights and responsibilities under the Americans with Disabilities Act are reviewed by Joseph J. Lynett in Plan to Minimize Spread of Flu and Legal Risks in the Workplace during Flu Season.

Health Insurance Portability and Accountability Act. The Omnibus Rule amending HIPAA took effect in March 2013 and made several key changes in privacy and security rules. In HIPAA and the Omnibus Rule: How to Assess Whether and What Your Company Must Do to Comply, Helen A. Christakos enumerates these changes and describes what covered companies must do to comply with the new rule.

Holidays. Unique liability concerns arise during holidays, such as using appropriate holiday decorations, accommodating religious practices, educating employees about holiday gift exchanges, and awareness of legal issues relating to holiday parties. Stephanie Leach summarizes these concerns in Avoiding Holiday Liability for Employers.

Independent Contractors. Employers who misclassify employees as independent contractors face a number of legal risks, including unpaid overtime, unpaid taxes, workers’ compensation concerns, and discrimination claims. In Employee vs. Independent Contractor: What You Need to Know, Roger Royse describes the differences between employees and independent contractors and why the distinction is important.

Lactation Discrimination. Employers who fail to accommodate nursing employees face several possible legal claims, such as sex discrimination and retaliation. In New Developments Surrounding Lactation Discrimination, Sarah Andrews and Sarah E. Bouchard discuss these claims and measures that employers can take to reduce the risk of liability.

Obesity. The recent adoption by the American Medical Association of a policy that labels obesity as a disease that requires medical intervention for treatment and prevention has increased the likelihood that courts will consider obesity as a disability under the Americans with Disabilities Act. In Obesity as a Disability Under the ADA: Is It More Likely Now Than Before, Cherie Blackburn describes the impact on employment decisions and actions.

Off-Duty Conduct. Can you withdraw a job offer after an applicant tests positive for marijuana prescribed by her doctor when the prescription is legal under state law? In You Can’t Fire Me For That—I Was Off Duty! Jeffrey A. Dretler provides examples of off-duty conduct that, depending on state law, might be grounds for discipline or termination by employers, such as the use of tobacco, alcohol—and medical marijuana.

Privacy. Recent activity at both the federal and state levels has led to increased focus on securing company information to protect privacy. In Protecting Your Business with Strong Operational Privacy Controls, Paul Glist, Christin S. McMeley and Daniel P. Reing provide examples of this government activity, along with a list of specific questions that a broad spectrum of company departments should address to secure data.

Records. Certain basic documents often determine the outcome of employment litigation. In Five Documents Sure to Appear in Your Lawsuit, Mauro Ramirez describes the Big Five that can make or break your case: job descriptions, handbooks, performance evaluations, disciplinary documents and responses to administrative charges.

Reductions in Force. Reductions in force can trigger expensive litigation and liability. While in some cases RIFs might be unavoidable, employers can adopt guidelines to reduce liability risks. These guidelines, along with alternatives to RIFs, are discussed in How to Control a Reduction in Force by James R. Wiley.

Retaliation. Retaliation is a word that should strike fear in the heart of every employer, as it is the most frequently filed charge with the Equal Opportunity Employment Commission (EEOC). Richard B. Cohen provides A Refresher Course for Employers on Retaliation that includes a three-part definition of retaliation and advice on retaliation claims prevention.

Religious Discrimination. Daniel H. Handman examines the challenges that employers face when religious practices conflict with workplace requirements in Three Questions Employers Should Ask About Religious Accommodation Requests. These questions relate to whether an employee’s bona fide religious belief conflicts with an employment duty, whether an accommodation imposes an undue hardship and whether any reasonable accommodations are available.

Seasonal Employees. A wide range of legal issues arise when businesses hire seasonal workers—such as wage and hour issues, hiring students, at-will employment, record-keeping rules and onboarding concerns. These issues are explored in Seven Employment Topics to Consider When Hiring Seasonal Workers by Steven F. Pockrass.

Severance Agreements. Severance agreements are commonly used by employers to obtain a release from liability from departing employees. In Avoiding Pitfalls of Severance Agreements, Rachelle E. Hill discusses several legal issues that employers should consider when using these agreements, including waivers of future claims, compliance with the Older Workers Benefit Protection Act, and requirements when there is a termination of multiple employees.

Sexual Discrimination. In Title VII Does Not Cover Sexual Orientation… Or Does It? T. Harold Pinkley discusses a recent EEOC ruling that a claim of gender identity, change of sex and/or transgender status is covered by Title VII, and he provides a list of steps that prudent employers should take to avoid liability. These steps include revising HR policies and reviewing pre-employment background checks.

Social Media. Do you have an agreement with your employees addressing ownership of social media accounts? Have you provided them with clear guidance regarding the use of these accounts? These topics are addressed, along with a discussion of case law, in Ownership of Business-Related Social Media Accounts by Aaron Rubin and Anelia V. Delcheva.

Telecommuting. Technology changes that define the workplace were widely discussed following CEO Marissa Mayer’s decision to ban telecommuting at Yahoo!. In How Flexible Are You? Stretching the Boundaries with a Remote Workforce, Laura Hayward and Brian Morris discuss legal complications in developing your telecommuting policy, such as providing reasonable accommodation, protecting sensitive data and complying with wage and hour regulations.

Wellness. In Workplace Wellness Programs, John B. Brescher, Jr., Mark A. Daniele, Joel E. Horowitz, Jane S. Kimball and Eleanor D. Thompson discuss new Workplace Wellness Program regulations that are designed both to prevent discrimination and to ensure that employers understand the general requirements governing these plans.

Workplace Violence. It is increasingly important for employers to understand workplace violence. In Workplace Violence Examined, Kelly O. Scott first defines the four Occupational Safety and Health Administration (OSHA) categories of violence and describes who is at risk under each category, and then discusses workplace security measures.

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We hope that the resources in this book will help you achieve business success in a responsible manner. If you have specific questions or need additional information, the authors have provided contact information at the end of each article.

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UNIT I

OPENING TEST

1. New Year’s Resolution—Protecting Your Business: 10 Employment Law Questions to Test Your Knowledge by Anthony J. Romano and Scott M. Gilbert

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Chapter 1

New Year’s Resolution—Protecting Your Business: 10 Employment Law Questions to Test Your Knowledge

by Anthony J. Romano and Scott M. Gilbert*

The New Year has arrived, and what better way to thaw out from the Polar Vortex than by settling in with a warm cup of cocoa and reviewing the answers to our Employment Law New Year’s Quiz.

1. An employee has complained that he has been working long hours recently, but has not received any overtime pay. The employee is paid a salary and not hourly, so the company:

a. Can ignore the employee’s complaint because salaried employees are not entitled to overtime.

b. Should offer the employee comp time to compensate him for the extra work.

c. Should take steps to confirm that the employee is properly classified as exempt under the Fair Labor Standards Act and any applicable state laws.

ANSWER: C. Paying an employee a salary does not necessarily mean that the employee is exempt from the overtime requirements of the FLSA. For example, in addition to receiving a minimum weekly salary of $455, to qualify under one of the White Collar Exemptions an employee’s job duties must also fit within the scope of exception claimed. Additionally, private employers cannot use comp time in lieu of overtime pay. Consequently, the employer here should take the complaint seriously and exercise due diligence to ensure that it is compliant with the FLSA.

2. The U.S. Supreme Court's decision in U.S. v. Windsor struck down a portion of the Defense of Marriage Act of 1996, which barred federal recognition of same-sex marriage. In light of this recent Supreme Court ruling, health and welfare benefits provided under an employer sponsored benefit plan must:

a. Be extended to all same-sex spouses of employees regardless of the terms of the plan document.

b. Be extended to all same-sex spouses of employees who reside in states that recognize same-sex marriage, and to registered domestic partners in those states that do not recognize same-sex marriage.

c. Be extended to only those spouses that meet the criteria as a spouse as that term is defined under the controlling benefit plan document.

ANSWER: C. While the Employee Retirement Income Security Act (ERISA) requires that retirement plans extend certain benefits to spouses of eligible plan participants, ERISA does not mandate that employer sponsored health and welfare plans provide coverage to spouses of eligible employees. Because of this, neither same-sex nor opposite-sex spouses are required to be offered coverage under an employer’s self-insured medical plan. Under an insured plan, the terms of the policy will control whether spouses must be offered coverage. Notwithstanding the fact that current law does not mandate spousal health and welfare benefits, employers that wish to provide coverage only to spouses of the opposite sex should first consider the legal ramifications and potential discrimination claims that could be brought by employees with same-sex spouses.

3. An employee has developed a medical condition that requires him to take a leave from work. He has now used all of his allotted leave under the Family and Medical Leave Act, and he is not entitled to any other leave pursuant to any company policy. However, the employee needs more time to recover and has requested some additional leave. In response to this request, the company:

a. Should inform the employee that he has used all of the leave to which he is entitled under the FMLA, and that his employment is terminated as a result, but that he is free to reapply when he is able to fully return to work.

b. Should inform the employee that it will try to keep his position open if possible, but that if a qualified candidate is found before he is able to return to the job, he will be replaced.

c. Should treat the employee’s request for additional leave as a request for an accommodation under the American’s with Disabilities Act and evaluate in good faith whether the request can be granted.

ANSWER: C. Given the expansion of the definition of Disabled under the amended Americans with Disabilities Act (ADA), issues arising under it and the FMLA will intersect more than ever. The Equal Employment Opportunity Commission (EEOC), as have many courts, has asserted that a request for additional leave might constitute a reasonable accommodation under the ADA. Consequently, in this scenario, the employer should at least engage in the interactive process to determine whether additional leave is possible.

4. If an employer asks a part-time, hourly employee to work on the weekend, the employer must pay that employee:

a. The employee’s regular rate because the Fair Labor Standards Act does not apply to part-time employees.

b. Time and one-half because weekends and nights require overtime compensation.

c. The employee’s regular rate of pay, unless the weekend work will push the employee over 40 hours of work during that work week.

ANSWER: C. As a general matter, the FLSA certainly applies to part-time employees, but it does not include a nights and weekends provision, despite the protestations of teenagers everywhere. Time worked on a weekend, with possible exceptions arising under the terms of a collective bargaining agreement or other unique circumstances, is treated as any other hours worked under the FLSA. Consequently, any hours worked up to and including the 40-hour threshold, regardless of whether they were worked at night or on a weekend, should be compensated at straight time. Any hours worked over the 40-hour threshold, again regardless of when they were worked, must be compensated as overtime, which is typically 1.5 times and employee’s regular hourly wage. It should be noted, however, that the FLSA sets a floor of protection, not a ceiling, and state wage and hour laws must always be consulted as part of this analysis.

5. An employee with a history of reporting late to work has come to your office and reported that her supervisor has repeatedly asked her out for dates despite the fact that she has always declined and told him to stop asking. An hour later, the employee’s supervisor stops by your office and informs you that the employee was 20 minutes late for her shift. You should:

a. Do nothing because it is clear that the employee and the supervisor just don’t like each other.

b. Treat both issues independently, i.e. investigate the harassment claim and discipline the employee in accordance with the company’s tardiness policy.

c. Investigate the harassment claim, but ignore the employee’s tardiness because it is just too dangerous to discipline an employee who has made a complaint of sexual harassment.

ANSWER: B. As a general matter, complaints of